106 So. 826 | Miss. | 1926
Ida Gibson, the widow and sole hear at law of Aaron Gibson, brought suit against R.P. Wineman and Otto Wineman, a partnership doing business under the firm name of A.T. Wineman Sons, for the death of her husband caused by the alleged negligence of the defendants. There was a verdict in favor of the plaintiff for the sum of five hundred dollars, and from this judgment the plaintiff has prosecuted an appeal on the ground that the damages awarded are grossly inadequate, while the defendants have prosecuted a cross-appeal from the verdict establishing their liability.
To the declaration there was filed a plea of the general issue, and also a special plea averring that appellant's claim had been compromised and settled for the sum of one hundred dollars, and that she had signed and executed a full release of all her claim for damages. The appellant denied that she signed a release with knowledge of its nature and contents, and denied that it was a full and complete settlement of her claim for the death of her husband, and averred that, while she signed a paper, presented to her by Otto Wineman, one of the defendants, by making her mark thereto, "she is an ignorant, illiterate negro woman, unable to read or write, and the paper to which she placed or made her mark was so signed by her at the office of the defendants at a time when she was without any one to advise her as to her rights; that she was called to the office of defendants through a message from defendants, from the undertaker's place of business, where her said deceased husband was then being prepared for burial, and that she *578 was in great mental distress and anguish; that she did not know the effect of the instrument which she may have signed — did not know and was not informed as to its contents; that said Otto Wineman, one of the defendants, represented to her that the paper she was asked to sign simply had reference to insurance which the defendants carried on their employees, and said Otto Wineman did not inform her, nor was she informed by any one, that she was signing a release of any claim which she might have against the defendants; that the said Otto Wineman represented to her that the defendants were not liable to her for any damages on account of the death of her said husband; that said defendant Otto Wineman took advantage of plaintiff's situation and hurriedly obtained her release before she had an opportunity to confer with friends, and that her signature was obtained by fraud and misrepresentations upon the part of said Otto Wineman; that she never received from the defendants any amount whatever, but she is informed and believes that defendants paid to the undertaker who buried said Aaron Gibson the sum of one hundred dollars by check of the defendants given by them to said undertaker."
The cross-appellants were operating a sawmill in the city of Greenville, and as a part of the machinery of this sawmill they had certain devices denominated "kickers" which were operated by steam and used to move saw logs. Attached to each of these "kickers" was a heavy steel beam or arm which moved these logs. At the time the deceased was injured he was engaged in removing trash and rubbish which constantly accumulated under the mill and under these "kickers." While he was working directly under one of these "kickers," the heavy steel beam thereof came loose from its socket or fastening and fell through to the ground or floor below, striking the deceased on the head, and inflicting an injury from which he died the following day. In view of the fact, however, that the only assignment of error pressed by the cross-appellant does not challenge the sufficiency of *579 the evidence to sustain the finding of the jury on the question of liability, we deem it unnecessary to set out the evidence bearing upon that question. Upon the question as to the validity of the release signed by the appellant, the testimony was conflicting, and this issue was submitted to the jury under proper instructions, and no complaint is made as to the finding of the jury upon that issue.
The only assignment of error urged by counsel for the cross-appellant is based upon an instruction for the plaintiff which authorized a recovery if the injury to the plaintiff's husband was caused through the negligence of the defendants as alleged in the declaration. If this instruction stood alone there might be some merit in the contention of counsel that it is erroneous on account of the reference to the negligence alleged in the declaration, without incorporating the facts which would support a finding of negligence, or from which the inference of negligence might be drawn; but all the instructions must be considered together, one as limiting, modifying, or supplementing others. When the numerous instructions in this case are so considered, we think the law applicable to the facts was fairly and accurately given, and that there is no reversible error bearing upon the question of liability.
At the time he received the injury which resulted in his death, the appellant's husband was an able-bodied man, thirty-seven years of age, and was earning the sum of two dollars per day. He was injured some time during the afternoon, and until he lapsed into unconsciousness sometime after 11 o'clock that night he suffered intense pain. There was no element of contributory negligence involved to reduce the damages, and the appellant was entitled to recover damages of every kind to the decedent, and also all damages of every kind to her as the widow, and we think the damages awarded are so grossly inadequate as to evince bias, passion, or prejudice on the part of the jury. *580
The judgment of the court below will therefore be reversed insofar as it adjudges the amount of damages to be recovered, but in all other respects it will be affirmed, and the cause remanded for the purpose only of assessing the damages to be recovered.
Affirmed in part, and reversed in part.
